4 HANDLING OF CLINICAL NEGLIGENCE AND PERSONAL INJURY CLAIMS POLICY AND PROCEDURE 1. INTRODUCTION The NHS West Sussex (PCT) Board is committed to effective and timely investigation and response to any claim that includes allegations of clinical negligence or personal injury. NHS West Sussex will follow the requirements of the NHSLA (National Health Service Litigation Authority) in the management of claims. Every member of staff is expected to co-operate fully, as required, in the assessment and management of each claim. The Trust also aims to ensure that its policies will be compliant with the Human Rights Act This policy is based on current guidance from the NHSLA. Any future changes in guidance will be followed, and may supersede the procedures laid down in this policy. 2. THE ROLE OF THE NHS LITIGATION AUTHORITY Status and Purpose The National Health Service Litigation Authority (the Authority) is a Special Health Authority set up under Section 11 of the NHS Act Its date of commencement was 21 st November The Principal task of the Authority is to administer schemes set up under Section 21 of the National Health Service and Community Care Act This enables the Secretary of State to set up one or more schemes to help NHS bodies pool the costs of any loss of or damage to property and liabilities to third parties for loss, damage or injury arising out of the carrying out of their functions. There are currently five schemes: A scheme covering liabilities for alleged clinical negligence 1 where the original incident occurred on or after 1 st April 1995 (the Clinical Negligence Scheme for Trusts or CNST); A scheme covering liabilities for clinical negligence incidents which occurred before that date (the Existing Liabilities Scheme or ELS); 1 A clinical negligence liability is defined for the purpose of this document as any liability in tort owed to a third party in respect of or consequent upon personal injury or loss arising out of or in connection with any breach of a duty of care owed by that body to any person in connection with the diagnosis of any illness, or the care or treatment of any patient, in consequence of any act or omission to act on the part of a person employed or engaged by [an NHS trust or health authority] in connection with any relevant function of that [body] See regulation (4) of the NHS (Clinical Negligence Scheme) Regulations SI. 1996/251 Responsible Director: Director of Communications, 3 Public Engagement and Human Resources

5 2.1.3 A scheme covering the outstanding liabilities for clinical negligence in respect of the former Regional Health Authorities; A Scheme relating to any liability to any third party where the original incident occurred on or after 1 April 1999 (the Liability to Third Party Schemes or LTPS); A scheme relating to any expenses incurred from any loss or damage to property where the original loss occurred on or after 1 st April 1999 (the Property Expenses Scheme or PES). For the purpose of this document, the five schemes are referred to together as the Schemes. 3. DAY-TO-DAY MANAGEMENT OF CLAIMS 3.1. The Role of the Claims Manager The Claims Manager is responsible for the conduct, control and documentation of all claims and potential claims where it is not yet clear whether a claim will be pursued. The Claims Manager will carry out such preliminary action, investigations and analysis of reportable claims as is required by the NHSLA and will liaise with the NHSLA as necessary over the conduct of such claims. The Claims Manager will provide Performance Indicators to the Director of Finance or the NHS West Sussex Board Members on request. Arrangements will be made to ensure that in the absence of the Claims Manager essential claims management activities will be carried out. When an urgent decision is required by the Trust on Claims Management, including the authorisation of a payment, this will be referred to the Chief Executive and/or the Director of Finance CNST Reporting Guidelines Under the CNST Reporting Guidelines, April 2002, when a significant litigation risk has been established and a realistic valuation of a possible claim has been made, the matter becomes reportable to the NHSLA. One of four possible situations may arise: Incidents reported which are graded red (NPSA Reporting Procedures). That revealing a possible breach of duty leading to a potential large value claim (damages over 250,000) must be reported as soon as possible, usually before a claim is made Claims arising from a complaints investigation where the response, on the facts, indicates that an admission of liability has been implied. Responsible Director: Director of Communications, 4 Public Engagement and Human Resources

6 3.2.3 Requests for disclosure of records where the preliminary analysis indicates the possibility of a claim with a significant litigation risk, regardless of value Letters of claim as the first indication of any action. Every effort will be made to ensure that potential claims are brought to a satisfactory conclusion without the necessity of a court hearing, by means of discussion, negotiation and, if applicable, mediation. 3.3 Responsibilities of the Claims Manager The Claims Manager will be responsible for ensuring that the Pre- Action Protocol for the Resolution of Clinical Disputes is followed, including responding to letters of claim and forwarding them to the NHSLA, within the time scales laid down The Claims Manager will ensure the disclosure of medical records, within the time scales laid down in the Data Protection Act 1998 or the Access to Health Records Act 1990 as applicable Receiving, acknowledging and processing all new potential claims that arise against NHS West Sussex Identifying and arranging for the preservation of relevant records and other items, such as equipment involved in incidents, etc Making certain that initial investigations have been made and a preliminary analysis has been done Reporting potential claims to the NHSLA in accordance with their reporting guidelines Establishing and, as necessary, maintaining contact with relevant staff and former staff Obtaining in-house expert and clinical advice as necessary In the event of disagreement about proposed admissions of liability in clinical claims, or if there are issues of sensitivity or anticipated repercussions, it is the responsibility of the Claims Manager to bring this to the attention of the Chief Executive and Directors of NHS West Sussex. Responsible Director: Director of Communications, 5 Public Engagement and Human Resources

7 3.4 Liaising with the NHSLA in the Management of Claims It is the Claims Managers role to prepare reports and other submissions as required for the NHSLA and the NHS West Sussex Directors and Board if required Preparing regular reports on: the number and aggregate value of claims and details of any individual claims, the progress and likely outcome of these claims, including the expected settlement date, the final outcome of the claim, any proposed remedial action arising out of a particular claim Support staff involved in the litigation process Ensure that Risk Management issues arising are shared as necessary with the NHS West Sussex Directors and/or the Risk Management Committee Ensure that lessons learned in the process of claims management are used for Risk Management purposes in the context of future service provision Liaise with the Trust Communications Manager as necessary where there is a possibility of publicity occurring The Claims Manager will meet regularly with the Director of Finance, Risk Manager, Patient Safety Manager, Customer Service Unit Manager and all relevant Directors to co-ordinate the handling of incidents, complaints and claims. 4. THE USE OF LEGAL ADVISERS. In the case of all reportable claims, defence solicitors will be instructed direct by the NHSLA and not by NHS West Sussex. 5. INFORMATION ON CLAIMS. The Claims Manager will establish and maintain a database of all claims relating to the Trust, including information about the nature of each claim, financial data and other information. This database will assist the Claims Manager to provide relevant and timely information as required either by the NHS West Sussex Board or the NHSLA. Due regard will be paid to the Responsible Director: Director of Communications, 6 Public Engagement and Human Resources

8 confidentiality of data relating to individuals. compliance with the Data Protection Act Delegated Financial Responsibility. Data will be processed in The NHSLA has responsibility for the financial management of all clinical negligence claims. It also has responsibility for the financial management of all reportable LTPS and PES claims above the designated excess levels. All payments in settlement of personal injury claims will be entered in summary form in the register of losses and special payments by the NHSLA. Any contributions from the NHSLA (LTPS or PES) will be noted in the register Nuisance Claims Decisions on whether to settle non-reportable claims will normally be based on an assessment of the likely outcome of the claim, on the balance of probabilities, if it should come to Court. Exceptionally, in the case of small nuisance claims where the cost of defending the claim would far outweigh the cost of settlement, an offer with no admission of liability may be considered. Any decision on settling a nuisance claim will be authorised by the Chief Executive and/or the Finance Director and should be based on the following considerations: The strength of NHS West Sussex s defence; The relative costs of defending or settling the claim; Any specific issues relating to the NHS West Sussex, any of its Directorates or members of staff concerned with publicity or public relations; The likelihood of a settlement attracting further similar claims; Documentation showing the reasons for the decision on whether or not to continue to defend the action will be filed in the claim file. 6. RISK MANAGEMENT ISSUES All staff are expected to co-operate fully in Risk Management issues. Clinical incidents will be reported promptly in accordance with the Policy and Procedure for the Reporting of Accidents and Incidents (Clinical and non Clinical). Where it is thought that there may be a possibility that a claim against NHS West Sussex may follow, the Claims Manager will be notified immediately or as soon as practicable. For all such potential claims, Directorates should conduct a root cause analysis and seek witness statements. All information should be sent to the Claims Manager. Responsible Director: Director of Communications, 7 Public Engagement and Human Resources

9 High standards of record keeping documentation are essential in medical records, to ensure that the facts are available in the event of a claim being made. When staff are asked to provide reports, statements or comments, they will be reminded as necessary on whether their reports are potentially disclosable in the event of a claim proceeding. Where, during the course of managing a claim, any risk management issues are identified, these will be dealt with in accordance with the Trusts Policy for Risk Management. 6.1 Grading Of Claims The Claims Manager should be able to arrange for all claims to be graded, taking into account the original incident report. All of the claims should be graded according to: Actual severity taking account of the seriousness of the harm caused as well as the financial implications of the claim Future risk to patients Future risk to the organisation Likelihood of claimant success. The initial risk level grading will be revised only when the action plan has been completed and the changes in practice can be shown to have reduced the level or risk. This grading procedure will be consistent with other adverse incident grading and risk assessments undertaken within NHS West Sussex. Major Red Red Red Red Severity Significant Orange Orange Orange Red Moderate Amber Amber Orange Orange Minor Green Amber Amber Amber Unlikely Possible Probable Likely/Certain Likelihood Responsible Director: Director of Communications, 8 Public Engagement and Human Resources

10 Major consequences = Fatality, major permanent harm, costs in excess of 100K, major effect on NHS West Sussex s reputation. Significant consequences = Major injury, significant harm, costs between 50K 100K, significant effect on NHS West Sussex s reputation. Moderate consequences = Moderate, non-permanent harm (e.g. effects lasting up to 1 year), costs between 10K - 50K, moderate effect on NHS West Sussex s reputation Minor consequences = Minor injuries, costs less than 10K, minor effect on NHS West Sussex s reputation. 6.2 Risk Level High Moderate Low Very Low Red Orange Amber Green 6.3. Risk Level and Level of Investigation and Review If the incident (leading to the claim) was previously reported as an adverse incident, investigation should already have been undertaken with the results being presented to the appropriate Governance/Risk Management Group for remedial action to be taken and monitored. 6.4 Root Cause Analysis The Claims Manager will adopt a root cause analysis approach to all investigations, which might lead to claims. The purpose of conducting a root cause analysis of potential claims is to identify the real causes of the incident and to establish legal causation. Root cause analysis can also reveal underlying system failures and other contributory factors that may have had an impact on the incident. In line with national requirements NHS West Sussex is applying a root cause analysis approach to investigations into adverse incidents, complaints and claims. Information on Risk Management issues arising and improvements undertaken will be reported to the Risk Management Committee. Responsible Director: Director of Communications, 9 Public Engagement and Human Resources

11 7. NHS WEST SUSSEX CLAIMS MANAGEMENT PROCEDURE. 7.1 Pre-Action Protocols NHS West Sussex recognises and will at all times adhere to the pre-action protocols for the resolution of clinical disputes and personal injury claims, in the interests of: Encouraging a climate of openness when something has gone wrong with a patient s treatment or the patient is dissatisfied with that treatment and/or the outcome Encouraging the adoption of a constructive approach to complaints and claims, and accepting that concerned patients are entitled to an explanation and an apology if warranted, and to appropriate redress in the event of negligence Building on and increasing the benefits of early but well informed settlement which genuinely satisfies both parties to dispute. 7.2 Pre-Action Protocol for Clinical Negligence Claims Obtaining the Health Records: The Patient and/or their legal adviser will request copies of the patient s clinical records (which includes any x- rays, CT scans, test results etc). The request should be made in writing to NHS West Sussex. These requests should adhere to the Department of Health Guidelines and should when properly completed constitute satisfactory evidence for NHS West Sussex purposes of the patient s consent for the release of their records to their legal and other expert advisors NHS West Sussex must provide copy records within 40 days of this request 2. In the rare circumstances that NHS West Sussex is unable to comply with a request within 40 days, the problem should be explained to the patient quickly, and details given of what is being done to resolve it If the records are not provided to the patient within 40 days the patient can apply to the court for an order for pre-action disclosure. This will have adverse cost consequences for NHS West Sussex Letter of Claim 2 The current fee for copy records is 1-10 pages 25.00, pages 35.00, pages and 150+ pages Responsible Director: Director of Communications, 10 Public Engagement and Human Resources

12 If the patient decides that there are grounds for a claim, they or their solicitors will send a letter of claim to NHS West Sussex The letter of claim should contain a clear summary of the facts on which the claim is based, including the alleged adverse outcome, and the main allegations of negligence. It should describe the patient s injuries, the present condition and prognosis, and the estimated financial loss incurred by the Claimant. In more complex cases a chronology of the relevant events should be provided. Sufficient information should be given to enable the NHS West Sussex to commence investigations if it has not already done so and for the NHSLA (National Health Service Litigation Authority) to put an initial valuation on the claim The letter of claim should be acknowledged by NHS West Sussex immediately and then forwarded to the NHSLA, as they will have to make an initial response within 14 days of receipt Under a set protocol, the Claimant should not issue proceedings until after 3 months from the date of the letter of claim, unless there is a limitation issue and/or the patient s position needs to be protected by early issue Letter of response The NHSLA should investigate the claim and within 3 months of the letter of claim provide a reasoned answer to it in the form of a letter of response. The NHSLA in consultation with NHS West Sussex will specify which issues of breach of duty and/or causation are admitted and which are denied and why. Documents must be enclosed which are material to the issues in dispute and which would be likely to be ordered to be disclosed by the court during proceedings. The letter of response will be drafted by the NHSLA who deal with all Clinical Negligence cases under CNST (Clinical Negligence Scheme for Trusts). It should be noted that admissions made in a letter of response are binding. 3 See appendix A standard Correspondence Responsible Director: Director of Communications, 11 Public Engagement and Human Resources

13 7.3 Pre-Action Protocol for Personal Injury Claims Letter of Claim Receipt of a letter of claim is likely to be the first indication NHS West Sussex receives of a potential personal injury claim 4. NHS West Sussex should acknowledge the letter of claim immediately and forward it to the NHSLA who will deal with it on behalf of NHS West Sussex. The NHSLA will acknowledge the letter of claim within 21 days of receipt. Under the protocol, the Claimant should not issue proceedings until after 3 months from the date of the letter of claim, unless there is a limitation issue Letter of Response The NHSLA will investigate the claim and within three months of the acknowledgement of claim provide a reasoned answer to it in the form of a letter of response. If liability is denied, reasons must be given for the denial, and documents must be enclosed which are material to the issues in dispute and which would be likely to be ordered to be disclosed by the court during proceedings. The letter of response will be drafted by the NHSLA and admissions made in a letter of response are binding for all claims Investigation of Claims The receipt of either of the following will trigger an investigation by the NHSLA: A request for records pursuant to the pre-action protocol for clinical negligence disputes which intimates a claim against the trust; or A letter of claim; or A claim form. Internal investigations must be commenced immediately upon receipt of a letter of claim or claim form. Occasionally, it may be considered appropriate to commence investigations upon receipt of a request for records. This is likely to be the case for very serious claims which are likely to proceed against NHS West Sussex and which will have a significant financial impact upon NHS West Sussex. The decision to commence investigations at this stage will be made by the Claims Manager, in consultation with the NHSLA and the appropriate Director. 4 The accident may have been reported in accordance NHS West Sussex s Incident Reporting Policy. Responsible Director: Director of Communications, 12 Public Engagement and Human Resources

14 The Claims Manager should always be notified immediately of any incident or complaint that could result in a claim. Very serious claims are likely to have been the subject of an adverse incident report in accordance with NHS West Sussex s Incident Reporting and/or Complaints Policies. The NHSLA will link into that investigative process Principal Aims of All Investigations The principle aims of any investigation by the NHSLA will always be as follows: To identify the full names and titles of all staff involved, and the identity of doctor s defence organisation and membership numbers if any To establish an account of the original incident To identify or maintain all written records To establish and maintain contact with the staff involved and to obtain an in-house expert opinion. The Claims Manager will then pursue further investigations on behalf of the NHSLA depending on whether the claim is for clinical negligence or personal injury Investigation of a Clinical Negligence Claim The NHSLA Claims Investigator, the Claims Manager, Patient Safety Manager and responsible Director will arrange a meeting with responsible staff, be that consultant, or other medical or nursing staff. The objectives of the meeting will be to gain appropriate information as set out above and to conduct a root cause analysis by; Obtaining preliminary comments from all potential witnesses; Obtain authority to release the medical records to the claimant (if they have not already been released to the NHSLA pursuant to a proper earlier request); Obtain details of any similar incidents; Identify and risk management issues; Identify the steps required to avoid a repeat incident and agree a plan for corrective action; Identify a time scale for the implementation for corrective action. Responsible Director: Director of Communications, 13 Public Engagement and Human Resources

15 Investigation of a Personal Injury Claim. The NHSLA Claims Investigator will arrange a meeting with the appropriate Manager, or Head of Department, the Line Manager and any other relevant witnesses 5. The objectives of the meeting will be as set out above and to: Conduct a root cause analysis; Obtain preliminary comments from all potential witnesses; Obtain the relevant documentation which may include copies of any adverse incident slip-stream forms, a copy of any accident book entry, the casualty card, RIDDOR report to HSE, any other health and safety documentation, the personnel file, other employment details, a copy of the occupational health file, risk assessments, photographs, details of staff training and staffing levels. This list is not conclusive and further documentation may be required depending on the facts of the case; 7.4. Corrective Action Obtain details of similar incident and decide upon and create an action plan for corrective action. On receipt of a claim the NHSLA will advise NHS West Sussex of the possible outcome and ask for evidence of corrective action, if this has not already occurred as a result of an incident report or complaint. The NHSLA will report on the progress of claims where corrective action has been shown to be necessary. These reports will go to the NHS West Sussex s Risk Management Committee. Claim files will not be closed until corrective action has been taken, and the Risk Management Committee has indicated that they consent to closure. 8. NHSLA 8.1 On receipt of a letter of claim from a Solicitor the Claims Manager should: Stop any complaints process, and obtain a copy of the complaints file, if any; Enter detail of the claim onto Safeguard and maintain this record as the claim progresses; 5 And, when appropriate the Risk Manager Responsible Director: Director of Communications, 14 Public Engagement and Human Resources

16 8.1.3 Open a file; Ensure that the file is neat and tidy and in date order; Send out standard correspondence within 5 working days 6 ; Report to the Risk Committee and produce Performance Indicators in order to report to the Trust Board in accordance with this policy and procedure Ensure that files are not closed until the appropriate information has been filed to enable them to be closed. Claims that are liable to become the subject of a reimbursement are dealt with by the RPST (Risk Pooling Scheme for Trusts). 9. INSTRUCTING THE NHSLA It is a requirement that NHS West Sussex must obtain legal advice for all claims involving potential expenditure above the standard delegated limit for ex-gratia payments. NHS West Sussex obtains its legal advice for clinical negligence and RPST claims from the NHSLA. NHS West Sussex may instruct the NHSLA to act on its behalf on receipt of a request for medical records and should instruct the NHSLA on receipt of a letter of claim or claim form. Legal advice received from the NHSLA should always deal with breach of duty, causation, an assessment of the strength of the defence on the balance of probability, the quantum of damages including a best and worse case scenario and the likely costs of defence. However, the final decision to pursue or settle a claim rests with NHS West Sussex. NHS West Sussex will co-operate with the NHSLA solicitors at all times, and the Claims Manager who has the responsibility for handling litigation claims will respond to requests for further information, and will ensure that the NHSLA solicitors are in a position to meet the Court s timetable for conduct of a claim. The NHSLA should provide quarterly updates on the progress of all claims. 6 Letter acknowledging receipt of the claim to the Claimant s Solicitor; Letter to the NHSLA including a copy of the letter of Claim or claim form requesting allocation of a solicitor to the case Responsible Director: Director of Communications, 15 Public Engagement and Human Resources

17 9.1. Resources The Authority will be responsible for: Expenditure on the Schemes whether centrally resourced i.e. funded by the Department of Health or by contributions from members The costs of administering the schemes and any additional tasks as specified. 9.2 NHSLA Aims, Objectives and Functions Aims and Objectives The Secretary of State s overall aims for the Authority in administering the Schemes are to promote the highest possible standards of patient care and to minimise the suffering resulting from any adverse incidents, which do nevertheless occur. In particular, the Authority will contribute to these aims by its efficient, effective and impartial administration of the Schemes, and by advising the Secretary of State on any changes that may be needed in the light of experience in running the Schemes and of changing circumstances. Subject to this overriding aim, the specific objectives of the Schemes are set out below. The Human Rights Advice and Information Service is intended to minimise the cost to the NHS of obtaining legal advice in relation to the Human Rights Act 1998, by providing NHS bodies with access to a centrally co-ordinated information service Maximising resources available for patient care To minimise the overall costs of clinical negligence, third party liabilities and property expenses to the NHS and thus maximise the resources available for patient care, by defending unjustified actions robustly, settling justified actions efficiently, and contributing to the incentive for reducing the number of negligent or preventable incidents Proper Payments To assess the amounts (if any) to be paid by each of the Schemes in relation to any particular claim, and to ensure that sums paid out are properly so paid Impact on Patient care and NHS costs To minimise the risk that patient care in a particular community is jeopardised by a large settlement against a local NHS body. Responsible Director: Director of Communications, 16 Public Engagement and Human Resources

18 To spread the costs of settlements more evenly over time Incentives to improved quality To contribute to the improvement of the quality of patient care by providing incentives within the schemes for NHS bodies to improve cost effective clinical and non clinical risk management (excluding motor insurance), and by disseminating relevant information on clinical and non clinical risks highlighted by claims management experience. To maximise the incentive for NHS bodies to ensure they contribute effectively to good quality improved claims management. To develop and where appropriate provide education, training and development aimed at promoting the skills and competencies required for good claims handling and risk management for NHS employees Access to appropriate remedies for genuine litigants To ensure that, where liability has been established, patients have appropriate access to remedies including, where proper, financial compensation Functions The main function of the Authority in seeking to fulfil these objectives will be to administer the Schemes set up under Section 21 of the NHS and Community Care Act 1990, efficiently and effectively on behalf of the Secretary of State for Health and with due regard to the interests of Scheme members, other NHS bodies, NHS staff, and users of the NHS. In particular, the Authority will: Determine operational policy for the Schemes; Determine standards of risk management and claims handling for Scheme members (and NHS bodies generally), and so manage the Schemes so as to encourage the adoption of these standards throughout the NHS; Work closely with the Department of Health and any relevant non-departmental Public Body or arms length Body in relation to performance and risk management in NHS bodies; Ensure the risk management standards developed by the Authority are complementary to the Department of Health s controls assurance initiative within the NHS; Determine individual applications under each Scheme for financial support to help to meet the cost of settlements; Responsible Director: Director of Communications, 17 Public Engagement and Human Resources

19 Manage the handling of claims so as to ensure a fair outcome in the interests of the NHS and patients generally; Assist the Department of Health in determining cash and resource limits for ELS; Determine contributions from members towards the costs of the contributory Schemes; Determine effective arrangements for the management of Schemes and appoint and oversee Scheme Managers, if deemed appropriate, who will be appointed by competitive tender for periods of three to five years and who will be responsible for functions to be determined by the Authority; Establish and maintain systems to ensure the correct payment to claimants under the Schemes; Promote the availability of education, training and development packages available to NHS staff in respect of both claims handling and risk management contributing to and designing specific courses as appropriate; Develop and disseminate good practice guidance for claims handling and risk management consistent with wider Department of Health and NHS initiatives; Assisting NHS bodies in compliance with the Human Rights Act; To undertake any other functions as may be determined from time to time by the Secretary of State for Health. The Authority as with all other NHS bodies is subject to the requirement of Clinical Governance and expects members of the Schemes to comply with those requirements as appropriate. Responsible Director: Director of Communications, 18 Public Engagement and Human Resources

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